Johnson v. State, 1 Div. 551
| Decision Date | 21 January 1954 |
| Docket Number | 1 Div. 551 |
| Parties | JOHNSON v. STATE. |
| Court | Alabama Supreme Court |
Chason & Stone, Bay Minette, for appellant.
Si Garrett, Atty. Gen., and L. E. Barton, Asst. Atty. Gen., for the State.
Willie Johnson (appellant) was indicted for murder in the first degree. Upon trial he was convicted of murder in the first degree and punishment was fixed at life imprisonment in the penitentiary.
Reversal of the judgment of conviction is sought (1) on alleged error in the oral charge of the court, (2) on the action of the court in overruling the defendant's motion for a new trial based on the ground that the verdict was contrary to the evidence and (3) on certain rulings of the court on the evidence.
Tendencies of the evidence show that late in the afternoon of January 17, 1953, there was a card game, known as a 'skin game,' going on in the house of Robert Stevenson in Fairhope, Alabama. During the game an argument arose between Stevenson, who was one of the players, and Willie Johnson, the appellant in this case. It was asserted by Stevenson that Johnson owed him fifty cents. The argument became so boisterous that the game broke up and all the parties engaged in the game left.
After leaving Stevenson's house the appellant went to his own home and in about an hour he picked up his pistol, put it in his pocket and according to his testimony went out looking for a prowler that he had seen around his house. He went to a corner of the street across from a cafe operated by Percy Dale. This cafe is about one-half block from his house and about two doors from the house where Stevenson lived. It was at this corner that appellant shot Stevenson with a 38 caliber pistol. While the appellant was standing on the street corner talking to Mack Green, Stevenson came up and sat on the steps on the Brown Mark's store, located on the corner where appellant was standing and directly facing the Percy Dale Cafe.
According to the testimony of Theodore Lett, a witness for the State, the defendant and the deceased were standing on the corner in front of the Brown Mark's store, which was closed. It was just about 'dusk dark.' In other words, the State's witness was standing in the opposite street corner and was looking across the street at the two men, the defendant and the deceased. According to him, he heard the deceased say that 'he was going to get his 50cents.' The witness further heard the deceased cursing about having lost the 50cents in the skin game. As the witness watched them, both men were standing straight up at a distance from each other described by the witness as 'not so awful fer.' When he was asked if that meant 6 or 8 feet he said 'not 8 feet' and then said 'fer as from me to Mr. Hubert there,' a distance which he would not exactly estimate. According to the witness, they were not moving toward each other. Suddenly the defendant fired two pistol shots in quick succession, the deceased slumped to the ground, fell to his hands and knees and began holding his stomach and calling for assistance.
An autopsy disclosed that the deceased had been shot twice in the back. Both bullets made holes in the clothing of the deceased. However, one bullet appears to have been a 'dud,' since it merely inflicted a skin burn about 2 1/2 inches long on the back of the deceased and then fell down into the rear part of his shirt. The other bullet was the fatal shot. It entered his back at a point below his shoulders at about 3 inches left of the center line of his back. Both Dr. Nelson E. Grubbs, State Toxicologist, and Dr. H. C. Jordan testified that there were powder burns on the jacket of the deceased and Dr. Grubbs gave it as his opinion that the gun was not more than six inches from the deceased when it was fired.
The deceased was rushed to a local hospital where he died about 2 1/2 hours after he was shot by the defendant.
Police officers came immediately to the scene of the crime. In the meanwhile the defendant and a companion, one Mack Green, immediately left the scene of the shooting and went to the defendant's home, which was a short distance away. The officers went to the defendant's home and arrested him there. The defendant admitted to them that he had shot the deceased twice. The pistol with which he had shot the deceased was lying on the defendant's dresser in a bed room of his home. He gave it to the officers, who upon examination found that it was a 38 caliber revolver holding five bullets, two of which had been fired. The defendant expressed his sorrow over the shooting and remarked that 'if it wasn't for that woman, it wouldn't have happened,' and said that the deceased had cut at him with a knife.
The defendant was wearing a coat type sweater and shirt. The officers examined his clothing at this time but did not find any cut marks on the defendant's person or his clothing. The defendant claimed that the deceased was armed with a knife and that he had shot the deceased in self defense. The defendant then accompanied the arresting officers to the scene of the crime, where a search was made with the aid of a flash light for any knife with which the deceased may have been armed. Although the search was made in the presence of the defendant and under his direction as to the place of the shooting, the officers were unable to find any knife. No knife was found on deceased when he was taken to the hospital and partly undressed for an emergency operation.
The defendant remained in the city jail of the town of Fairhope for about an hour and a half when the deputy sheriff arrived to take him to the jail at the county seat in Bay Minette. The deputy sheriff examined the defendant's clothing and found cuts thereon. There were three or four cuts in the defendant's sweater, one being on the side and another up around the neck line of the sweater. However there were no cuts on the defendant's body. He was wearing suspenders. Although there were some cuts in the shirt directly beneath the suspenders, the suspenders themselves had not been cut.
Witnesses for the defendant testified that Theodore Lett could not have seen the killing because at the moment the two shots were fired he was in the cafe across the street eating a fish sandwich. According to the witnesses for the defendant, the deceased started the difficulty and as the defendant turned away from him and started toward his home, the deceased attacked the defendant with a knife, tussling with the defendant, after having threatened to whip and kill him. They further testified that when defendant returned to his home after the killing his shirt was cut in the vicinity of his neck. James Williams, a boy eleven years of age,...
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